Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF013279. Carl E. Davis (retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and F. Paul Dickerson, III, Judges.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anthony DaSilva and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant Salvador Conchola Curiel guilty of one count of intentionally owning or operating a chop shop (Veh. Code, § 10801), and four counts of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). The trial court suspended the execution of defendant’s sentence and granted defendant 36 months of formal probation, with the condition that he serve 365 days in the custody of the Riverside County Sheriff’s Department.
Defendant makes five contentions. First, defendant asserts that his convictions should be reversed because the identity of the police informant remained confidential despite the informant being a material witness. Second, defendant contends that his convictions for receiving stolen vehicles (Pen. Code, § 496d, subd. (a)) should be reversed because they are lesser included offenses of operating a chop shop (Veh. Code, § 10801). Third, defendant asserts that the trial court erred by inadequately instructing the jury. Fourth, defendant contends that three of his probation conditions are unconstitutional. Fifth, defendant contends that his presentence custody credits should be amended. We modify defendant’s contested probation conditions, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant owned two residences; one residence was located on Seventh Street in San Jacinto (San Jacinto house), and the second residence was located on South Gilbert Street in Hemet (Hemet house). On June 21, 2005, Hemet Police Detective Pust was told by a confidential informant that a stolen 1967 Chevrolet Camaro was at defendant’s Hemet house. Prior to June 21, Detective Pust had spoken to an owner of a 1967 Camaro, Brent Williams (Williams), who reported his car stolen. On June 21, Detective Pust and three other officers from the Hemet Police Department went to defendant’s Hemet house. The stolen Camaro was parked in the driveway.
More than one vehicle identification number (VIN) was found on the Camaro. A VIN plate was located on the driver’s door, and a VIN stamp was located inside the car’s top cowl—below the windshield, between the engine firewall and front dash panel. The VIN plate on the driver’s door was fastened onto the car with round rivets; VIN plates are typically fastened onto a car with a roset-type rivet. The VIN plate from the door was assigned to a salvaged vehicle that was registered to defendant. Williams went to the Hemet house; he identified the Camaro as his car.
When Williams saw his Camaro, he noticed that several parts were missing. Items missing from the Camaro included “the seats, the door panels, radiator, alternator, power steering bracketry, all of the weather strips, ” the headlight assemblies, and one of the motors. Additionally, numerous holes had been cut and drilled into various parts of the Camaro, and the car had been painted a different color.
A Honda CRF50 Motorcycle was also found at the Hemet house. It appeared that “some numbers” had been stamped over the motorcycle’s original VIN. Andrew Dirkes had previously reported the motorcycle stolen from a house in Riverside. When the motorcycle was returned to Dirkes, after being found in defendant’s garage, Dirkes noticed that stickers had been added to the motorcycle.
Inside the garage, law enforcement officers found a Milwaukee Saws All, which is a tool used to cut large pieces of metal, such as a car frame; two slim jims, which are used to open locked vehicles; and a police baton.
Detective Pust then went to defendant’s San Jacinto house. Defendant rented the San Jacinto house to the boyfriend of Jaci Smith. Smith lived in the San Jacinto house. The San Jacinto property included a detached garage. As part of the rental agreement, the garage and fenced-in backyard were off-limits to Smith. The backyard was approximately one-quarter acre. Detective Pust cut a lock on the backyard gate in order to search the area.
In the backyard, Detective Pust found a dump truck, a couple of trailers, a tractor, a boat, and two Sea-Doo watercrafts. The Sea-Doos found in the backyard had previously been reported stolen by Heber Dunn. Inside the dump truck, Detective Pust found Centerline rims that had been placed on the 1967 Camaro by Williams.
One of the trailers in the backyard was a trailer that had previously been reported stolen by Daniel Tackett. The license plate attached to the trailer, when found by Detective Pust, was not the license plate assigned to the trailer. At the time the trailer was stolen, it was filled with one motorcycle, two ATVs, a generator, and camping gear. When the trailer was returned to Tackett, he noticed that a blue stripe had been painted on it; the trailer was empty; the hitch was damaged; and there were many new dents and dings on the body of the trailer. The motorcycle, ATV, generator, and camping gear were not returned to Tackett.
The tractor found in the backyard had previously been reported stolen from a construction site. DH Ride, Inc. had rented the tractor from United Rentals. Before the tractor was taken, United Rentals decals were on the tractor—on the arm of the bucket. There were no decals or logos on the arms of the tractor when it was found by police. Detective Pust noticed that part of the tractor’s arms had been painted a brighter shade of yellow than the rest of the tractor.
On June 21, Hemet Police Sergeants Newman and Evans conducted surveillance at defendant’s San Jacinto house. While watching the residence, Sergeant Newman saw a red Dodge Neon arrive. A female, Christy, was driving the car, and a male, Bert, was in the passenger seat. Bert exited the car, walked towards the house, and then reappeared driving a white Mitsubishi Mirage. The Mitsubishi did not have a front license plate, it had a flat tire, and one of the smaller rear windows was “broken out.” The Mitsubishi exited defendant’s property and the Neon followed behind the Mitsubishi. Sergeant Newman followed behind the Neon and Mitsubishi, in order to conduct a traffic stop on the Mitsubishi.
Within the record, Sergeant Newman was referred to as a corporal and a sergeant. For the sake of consistency, we will refer to Sergeant Newman as “Sergeant Newman.”
At one point, the Mitsubishi pulled over on the side of the road, and the Neon stopped alongside the Mitsubishi—it appears from the record that Bert stopped the Mitsubishi on his own, not in response to a police traffic stop. Bert exited the Mitsubishi, and opened the Neon’s passenger door. Sergeant Newman stopped alongside the Neon. Sergeant Newman’s car was not marked as a police vehicle; however, Sergeants Newman and Evans were wearing vests that read “police.” Sergeants Newman and Evans exited their vehicle. When Bert saw the law enforcement officers, he ran. The officers were unable to catch Bert when he ran away.
Sergeant Newman gave the Mitsubishi’s license plate information to his dispatcher, and was informed that the Mitsubishi had been reported stolen. Sergeant Newman impounded the Mitsubishi. There were no significant items missing from the Mitsubishi when it was impounded; however, the victim’s personal items, such as her stuffed animals, had been removed. Police were able to locate Bert approximately two days later. Bert told Sergeant Newman that defendant told him to “dump” the Mitsubishi. Bert told the Sergeant that he had to break one of the Mitsubishi’s windows in order to access the keys, which were locked inside. Jane Dabe, the owner of the Mitsubishi, had the keys to the car in her purse when the car was stolen—she did not leave the keys in the car.
In September 2005, Sergeant Newman observed defendant leave the Hemet house. Sergeant Newman conducted a traffic stop on defendant, who was driving a truck. When searching the truck, Sergeant Newman found (1) two separate key chains containing a “large amount” of car and house keys, (2) a “Slim Jim”; and (3) a photograph of the 1967 Chevrolet Camaro that belonged to Williams.
Riverside County Sheriff’s Detective Gilbert, an “auto theft expert, ” reviewed the photographs taken during the investigation of defendant’s properties. Detective Gilbert did not see any cars that were “cut up, ” but he did see “stuff that was taken apart.” Detective Gilbert thought that defendant’s property “did not look like the type of chop shop where people are cutting things up to sell parts and make a quick dollar.” However, the detective testified that a person could still have a chop shop if the shop is being used to restore a car. Detective Gilbert testified that changing VINs, repainting cars, and removing decals were acts indicative of a chop shop.
Defendant testified at his trial. Defendant said that he purchased the 1967 Camaro from Robert Hanson. Nothing about the Camaro indicated to defendant that it was stolen—Hanson had a key for the car and the title. Nothing Hanson said to defendant indicated that the car was stolen. Defendant was working on the Camaro in his garage; he put new tires and wheels on the car; repainted the car; and was working on installing a new motor. Defendant denied trying to disguise the vehicle by changing the VIN or license plate. Defendant said that he did most of the work on the Camaro in the driveway of his house, or in the garage with the door open.
Defendant testified that he received the CRF50 Motorcycle in exchange for repainting the side of a Ford Mustang. Defendant did not believe that the motorcycle was stolen. Defendant did not check the VIN because it was such a small motorcycle, about knee-high, “[a]nd back then, they were selling those on the side of the road all over the place.” Defendant never tried to register the motorcycle. Defendant denied altering the VIN on the motorcycle.
Defendant explained that he had the Saws All because he was remodeling parts of his Hemet house and the Saws All was used to remove walls inside the house. Defendant never saw the police baton at his house.
In regard to the San Jacinto house, defendant testified that he was not aware of any stolen vehicles at the house. Defendant said that he had a key to the backyard of the house, “somebody else” had a key, and there was a “hide-a-key” “out there in a spot.”
Defendant stated that he received the Sea-Doos from Todd Hodges in exchange for a 350 Chevy small block motor. Hodges did not have the paperwork for the Sea-Doos, but Hodges’s friend in the sheriff’s department checked the VINs, and they “came back clean.”
Defendant testified that the tractor and trailer were at the San Jacinto house because Robert Hanson asked to store them at defendant’s house. Defendant was not at the house when Hanson placed the trailer or the tractor on his property. Defendant stated that the trailer always had a blue stripe painted on it—defendant did not paint the stripe. Defendant did not know that the trailer was stolen. Defendant also denied painting the arms of the tractor. Defendant used the tractor while it was on his property. Defendant started the tractor with a key; he never thought the tractor was stolen. Defendant explained that Hanson and Hanson’s brother buy and sell “old, used vehicles.”
Defendant denied ever seeing a Mitsubishi at his San Jacinto house, or having any knowledge of the car being at his house. Defendant denied telling Bert or anyone else to “dump” the Mitsubishi. Defendant explained that he only went to the San Jacinto house when it was time to pick up the rent from Smith.
Defendant was convicted of operating a chop shop (count 1); receiving the stolen Mitsubishi (count 4); receiving the stolen trailer (count 5); receiving the stolen Sea-Doos (count 6); and receiving the stolen tractor (count 7). The charges of receiving the stolen Camaro (count 2) and receiving the stolen motorcycle (count 3) were necessarily included in the offense of operating a chop shop, and therefore, the jury did not return verdicts as to those two charges.
DISCUSSION
A. LESSER INCLUDED OFFENSE
Defendant contends that his convictions for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) should be reversed because receiving a stolen vehicle is necessarily included within the offense of intentionally owning or operating a chop shop (Veh. Code, § 10801). We disagree.
We apply the independent standard of review to defendant’s contention. (See People v. Licas (2007) 41 Cal.4th 362, 366 [concerning failure to instruct on a lesser included offense].)
This court has previously concluded that the offense of receiving a stolen vehicle is necessarily included in the offense of operating a chop shop. (People v. King (2000) 81 Cal.App.4th 472, 476 (King).) However, in another case, this court concluded that a defendant could properly be convicted and sentenced for receiving a stolen car and operating a chop shop where the facts reveal dual uses for the stolen car. (People v. Sanchez (2003) 113 Cal.App.4th 325, 333 (Sanchez).) For example, receiving a stolen car is not a necessarily included offense in the crime of operating a chop shop if the defendant possessed the stolen vehicle parts as a result of installing them into his own car, because that possession would be separate from the chop shop’s possession of the same items. However, receiving a stolen car is a necessarily included offense in the crime of operating a chop shop if “the same possession is involved in both charges.” (Id. at pp. 333-334.)
Our first step in analyzing this contention is determining the location of the chop shop, because if the jury found that the chop shop was only at the Hemet house, then defendant’s possession of the vehicles at the San Jacinto house would arguably be separate from the chop shop’s possession of the vehicles. The verdict form related to the chop shop conviction reflects, “We, the jury in the above-entitled action, find the defendant... guilty of a violation of section 10801 of the Vehicle Code, OWNING/OPERATING A CHOP SHOP, as charged under count 1 of the information.” The verdict form does not include any identifying information about the chop shop, such as “to wit: defendant’s Hemet house.” Since the verdict does not clearly identify the location of the chop shop, we review the jury instructions and the closing arguments to determine if the jury was instructed to find that the chop shop was located at the Hemet house. (See People v. Jones (2003) 29 Cal.4th 1229, 1259 [reviewing jury instructions when the verdict form is unclear].)
During closing arguments, the prosecutor argued that the chop shop charge was supported by (1) the two vehicles at the Hemet house that had altered VINs; (2) the “five or six vehicles” at the San Jacinto house; (3) tools found in the garage of the Hemet House; and (4) the expert’s testimony that “[e]ither [residence] could be a stand-alone chop shop, but together they’re all one chop shop operation.” Based upon the foregoing argument, it appears that the prosecutor argued that the Hemet house and the San Jacinto house constituted a single chop shop; however, the prosecutor quickly clarified the People’s position.
The prosecutor argued that a chop shop consists of a “building, lot, or other place.” The prosecutor explained, “We have one of each of those. We have a building and we have a lot. We’re talking about the building. There’s only one count for the chop shop. It’s where the vehicle altered I.D. numbers were and the tools were. It’s the building.” This latter portion of the prosecution’s argument clarified that the chop shop charge was focused on the evidence related to the Hemet house, because the prosecutor stressed that the charge only related to the “building, ” which would be the garage at the Hemet house.
The trial court’s instructions to the jury further clarified the People’s position regarding the chop shop charge. The trial court instructed the jury, “Receiving a stolen 1967 Camaro, as charged in Count 2, is a lesser crime of operating a chop shop, as charged in Count 1. Receiving a stolen Honda 50 cc motorcycle, as charged in Count 3, is a lesser crime to operating a chop shop, as charged in Count 1.” The trial court explained, “I can accept a verdict of guilty of the lesser crime, only if you have found the defendant not guilty of the greater crime.” The trial court’s jury instructions reinforced the argument that only the cars at the Hemet house were part of the chop shop, because the trial court explained that only the charges related to the cars at the Hemet house would be affected by the chop shop verdict.
Based upon the prosecution’s argument and the trial court’s jury instructions, the record reflects that the chop shop conviction is related solely to the Hemet house. Since the chop shop conviction only relates to the Hemet house, defendant’s possession of the vehicles at the San Jacinto house is separate from the chop shop’s possession, because the San Jacinto vehicles were not at the chop shop, and therefore were not part of the chop shop operation. Accordingly, we conclude that defendant’s convictions for receiving a stolen vehicle are not necessarily included within the chop shop charge. In other words, we find no error.
B. JURY INSTRUCTIONS
Defendant contends that the trial court erred by not instructing the jury that all of the receiving stolen vehicle charges were necessarily included within the chop shop charge. We disagree.
“[A]bsent a request, and even over the parties’ objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 118.) We apply the independent standard of review. (People v. Licas, supra, 41 Cal.4th at p. 366.)
As set forth ante, the offense of receiving a stolen vehicle is necessarily included within the offense of operating a chop shop. (King, supra, 81 Cal.App.4th at p. 476.) The trial court instructed the jury on the lesser included offense of receiving a stolen vehicle for each of the charged stolen vehicles. Since the trial court instructed the jury on the lesser included offense, we find no error.
Defendant contends that the trial court erred by not instructing the jury that all of the stolen vehicle charges were necessarily included within the chop shop charge. It appears defendant is contending that the trial court erred by not adequately instructing on the greater offense, because defendant is asserting that the chop shop instruction should have been broadened so as to subsume all of the charges of receiving a stolen vehicle. We do not find defendant’s argument persuasive, since he is contending that the trial court erred by not adequately instructing on the greater offense, rather than the lesser offense.
C. MATERIAL WITNESS
1. FACTS
On October 24, 2007, defendant filed a motion requesting disclosure of the confidential informant’s identity, on the grounds that the informant was a material witness. In a declaration attached to the motion, defendant’s trial attorney, Mr. Moore, declared that the following was written in Detective Pust’s affidavit in support of a search warrant: “‘The CI also stated that [defendant] has a stolen Camaro at [his residence], and other stolen vehicles at a second location.... The CI stated that the Camaro was stolen out of a mobile home park storage facility approximately seven months ago. The CI said the mobile home park was located on the southeast corner of State St. and Thornton Ave.... The CI stated the... Camaro was towed from the storage yard of the mobile home park, on a flat be[d] tow truck, and later taken to [defendant’s] residence.... The CI stated the vehicle was initially painted a primer color and recently repainted silver metallic....’” Further, Mr. Moore declared that the confidential informant told Detective Pust that “‘the stolen vehicle was located at the above location and the vehicle identification numbers were switched with a salvaged vehicle.’” Additionally, Mr. Moore declared that Detective Pust’s affidavit reflected that the informant provided the foregoing information in exchange for consideration on a pending criminal case.
Judge Dickerson heard defendant’s motion. At the hearing, defendant argued that the confidential informant appeared to have been a participant in the crimes or an eyewitness to the crimes, and therefore, the confidential informant had material information relevant to the defense. The prosecutor argued that defendant’s motion should be denied because there was nothing suggesting that the confidential informant had information that might exonerate defendant. The trial court denied defendant’s motion for two reasons. First, the court found that the informant’s testimony was more likely to inculpate defendant than exonerate defendant. Second, there was no evidence suggesting that the informant was a material witness. The trial court pointed out that defendant claimed to have lawfully bought the Camaro; and consequently, defendant admitted possessing the stolen vehicle. The trial court reasoned that no evidence had been presented to show that the informant was a material witness on the issue of whether defendant knew the Camaro was stolen at the time he possessed it.
On April 14, 2008, at a hearing conducted by Judge Freer, defendant moved for reconsideration of his motion to disclose the informant’s identity. Defendant argued that Judge Dickerson misconstrued the cases cited in defendant’s original moving papers, and asserted that he had not been given a full and fair opportunity to address the court’s erroneous interpretation of the cases. Judge Freer found that “it sets a bad precedent for this Court to go over... another judge’s ruling, ” and said that he would not act “as an appellate court.” Accordingly, the trial court declined to reconsider defendant’s motion.
On May 28, 2008, defendant moved the trial court to continue the trial date, because he was pursuing appellate relief. Defendant informed the trial court that he had sought a writ of mandate in this court, but the petition was summarily denied. (Curiel v. Superior Court (May 13, 2008, E045703) [summary denial].) Defendant informed the trial court that he filed a petition for review with the Supreme Court, and was waiting on the court’s ruling.
On June 29, 2009, during motions in limine, before Judge Davis, the prosecutor moved the court to exclude any mention of the confidential informant from the trial. The prosecutor said that he would begin the case from the point of the police executing the search warrant on defendant’s property, and leave out the informant, because it would be difficult to separate the informant’s identity from “where he got his information and so forth.”
Defendant’s trial counsel argued that the information related to the informant was “extremely relevant” and “material and necessary” to the defense. Defense counsel asserted that the informant had “intimate knowledge as to the details of not only the thefts of some or all of these vehicles but [also] how they were brought into [defendant’s] possession, ” which was relevant to (1) defendant’s knowledge of whether the vehicles were stolen, and (2) how defendant came to possess the vehicles, “which could impact possible sentencing or [section] 654... analyses if there is ultimately a conviction.” Defense counsel argued that if all of the vehicles came into defendant’s possession at one time, then that could impact whether defendant should be given consecutive sentences.
The trial court asked “[w]hat mechanism” could be used to introduce into evidence the informant’s statements to Detective Pust. The court questioned, “if he’s not here to testify, how would it be brought to the jury’s attention what he told the police?” Defense counsel argued that the informant’s statements were made against the informant’s penal interest, and were reliable because the statements were used to secure the search warrant. The trial court responded, “No, I’m not going to go there. I think that the Court of Appeal has decided this issue.” The trial court explained that this court’s summary denial was law of the case. The trial court concluded, “I just have to agree with [the prosecutor], I think this whole thing starts when the police arrive.” The court granted the prosecutor’s motion to exclude any evidence regarding the confidential informant.
During the prosecutor’s direct examination of Detective Pust, the following exchange occurred:
“[Prosecutor]: Okay. And do you recall what brought you to that address looking for that Camaro?
“[Detective Pust]: The information that I received that a possible stolen ’67 Camaro was at that location.
“[Prosecutor]: Do you remember who you got the information from regarding where that Camaro might be?
“[Detective Pust]: Yes.
“[Prosecutor]: Who was that?
“[Detective Pust]: Confidential informant.”
The prosecutor informed the trial court that he expected Detective Pust to testify that the owner of the Camaro, Williams, directed him to defendant’s house, not the confidential informant.
After the foregoing exchange, out of the presence of the jury, defendant’s trial counsel advised the trial court that he would be seeking leave to cross-examine Detective Pust about the confidential informant and the nature of the information given by the informant. The prosecutor argued that the information about the informant should be excluded because the “single statement” by the detective did not “pollute” or “taint” the proceedings.
The trial court concluded that since the prosecutor’s witness mentioned the confidential informant, the defense was entitled to cross-examine the detective about the information he received from the informant, as long as the informant’s identity was not revealed. The court noted that the informant’s statements to the detective would not be received for the truth of the matters asserted, rather, they would be received to explain Detective’s Pust conduct of investigating defendant’s property.
Defendant then moved for a mistrial based on Detective Pust’s testimony and the trial court denying the defense access to the informant. The trial court responded, “I think we have a rule on the case, you’ve raised that issue [regarding access to the informant], with the appellate courts; and it’s been rejected. So I consider it a rule of [the] case, even though there was no opinion and no holding on it.” Consequently, the trial court denied defendant’s motion for a mistrial.
Defendant’s trial counsel argued that the defense theory of the case was that defendant did not know that the Camaro was stolen; and the informant could possibly testify that defendant obtained the Camaro in a lawful manner. Additionally, defendant argued that the informant was a possible alternate suspect—someone that could be used to raise a reasonable doubt as to whether defendant committed the charged offenses.
The trial court responded, “Well, your client doesn’t have to be corroborated, for one thing; and No. 2, what’s critical in this case is what the officers found at the location. And I don’t see where the informant is even relevant to whether he knew or didn’t know that those items are stolen.” The trial court then concluded that the motion in limine ruling would stand—the presentation of the case would begin with the police executing the search warrant, and Detective Pust would not testify about the information he received from the informant. The court reasoned that Detective Pust’s mention of the confidential informant was “so slight” that it did not “really change[] the complexion of things, ” in regard to the pretrial ruling.
2. ANALYSIS
a) Contention
Defendant contends that his convictions should be reversed because the identity of the police informant remained confidential despite the informant being a material witness. We disagree.
b) Standard of Review
Defendant contends that we should independently review the trial court’s ruling on his motion to disclose the informant’s identity. The People contend that we should review the ruling for an abuse of discretion.
Our Supreme Court has intentionally left open the question of which standard of review to apply when analyzing a trial court’s ruling on a defendant’s motion to disclose the identity of a confidential informant. (People v. Gordon (1990) 50 Cal.3d 1223, 1245-1246, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.) In Gordon, our Supreme Court wrote that the abuse of discretion or independent standards of review may be applicable to such a ruling. (Gordon, at pp. 1245-1246.)
“[A]buse of discretion is generally the proper standard of appellate review on matters regarding discovery in criminal cases [citation]....” (People v. Ashraf (2007) 151 Cal.App.4th 1205, 1212.) However, our Supreme Court has concluded that Brady claims are subject to the independent standard of review. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) “Under Brady, ‘“the prosecution must disclose to the defense any evidence that is ‘favorable to the accused’ and is ‘material’ on the issue of either guilt or punishment.” [Citation.]’” (Ashraf, at p. 1212.) In order to obtain identifying information concerning a confidential informant, a defendant must show that the informant’s testimony might exonerate the defendant. (People v. Lawley (2002) 27 Cal.4th 102, 159-160 (Lawley).) The legal issues involved in obtaining a confidential informant’s identifying information are nearly identical to the legal requirements for obtaining Brady material. Accordingly, we apply the independent standard of review in the instant case, because the instant issue is more akin to a Brady violation than a general discovery violation.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
The People contend that the abuse of discretion standard of review should be applied because in People v. Hobbs (1994) 7 Cal.4th 948, the Supreme Court suggested that it is the appropriate standard. In Hobbs, our Supreme Court wrote, “[I]t will first be recalled that defendant filed a separate motion to discover the identity of the confidential informant in order to determine whether the informant was a material witness to her guilt or innocence. Her plea of no contest, tantamount to a guilty plea, bars any appeal from the denial of that motion, and she does not contend otherwise.” (Id. at pp. 975-976.) In other words, the Hobbs court did not review the defendant’s motion to disclose the identity of the confidential informant on the basis that the informant was a material witness. Therefore, we are not persuaded by the People’s argument.
c) Legal Background
“[T]he prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.]” (Lawley, supra, 27 Cal.4th at pp. 159-160; see also Evid. Code, § 1042, subd. (d).) “Where the evidence indicates [that] the informer was an actual participant in the crime alleged or was a nonparticipating eyewitness to that offense, ipso facto it is held he would be a material witness on the issue of guilt and nondisclosure will deprive the defendant of a fair trial.” (People v. Lee (1985) 164 Cal.App.3d 830, 835-836.) “‘However, an informant is not a material witness when “‘he simply points the finger of suspicion toward a person who has violated the law....’” [Citation.]’ (People v. Wilks (1978) 21 Cal.3d 460, 468-469.)” (Id. at p. 835.)
Evidence Code section 1042, subdivision (d), sets forth the procedural requirements for a motion to disclose a confidential informant’s identity. The trial court must hold a hearing on a defendant’s motion to disclose an informant’s identity. At the hearing, the parties may produce evidence on the issue of disclosure. (Evid. Code, § 1042, subd. (d).) When a defendant brings a motion to disclose identifying information, it is the defendant’s burden to produce “‘“‘some evidence’”’” that the informant is a material witness. (Lawley, supra, 27 Cal.4th at pp. 159-160; see also Evid. Code, § 1042, subd. (d).) If the prosecutor or prosecution witness at the hearing refuses to answer questions about the informant, on the ground that the answers would reveal the informant’s identity, then the prosecutor may request an in camera hearing. (Evid. Code, § 1042, subd. (d).) If such a request is made, then the trial court must hold the in camera hearing. (Ibid.) “At the in camera hearing, the prosecution may offer evidence which would tend to disclose... the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” (Evid. Code, § 1042, subd. (d).) At the in camera hearing, if “the trial court reasonably concludes [that] the informant does not have knowledge of facts exculpating defendant, [then] disclosure of the informant’s identity is prohibited.” (People v. Lee, supra, 164 Cal.App.3d at pp. 838-839.) However, “[w]here no in camera hearing has been held, lack of knowledge of the informer’s testimony requires a disclosure of his identity or a dismissal of the case.” (Id. at p. 838.)
d) Analysis
For reference, the declaration reflects that the affidavit reads, “‘The CI also stated that [defendant] has a stolen Camaro at [his residence], and other stolen vehicles at a second location.... The CI stated that the Camaro was stolen out of a mobile home park storage facility approximately seven months ago. The CI said the mobile home park was located on the southeast corner of State St. and Thornton Ave.... The CI stated the... Camaro was towed from the storage yard of the mobile home park, on a flat be[d] tow truck, and later taken to [defendant’s] residence.... The CI stated the vehicle was initially painted a primer color and recently repainted silver metallic....’” Further, Mr. Moore declared that the confidential informant told Detective Pust that “‘the stolen vehicle was located at the above location and the vehicle identification numbers were switched with a salvaged vehicle.’”
The informant’s statements are problematic because they are presented in the passive voice, e.g., the “Camaro was towed.” Due to the use of the passive voice, it is unclear who performed the actions described by the informant. It is possible that the informant was describing his or her own actions, or that the informant was describing defendant’s actions. Due to the use of the passive voice, the informant’s statement is vague, and therefore lacks value for purposes of inculpating defendant or exculpating defendant. Stated differently, we cannot conclude that there was a reasonable possibility of the informant giving evidence on the issue of guilt that might exonerate defendant, because the informant’s statement was too vague. Further, we cannot conclude that the informer was an actual participant in the crime alleged or was a nonparticipating eyewitness to that offense, because the informant’s statements are too vague. In sum, we conclude that the trial court did not err.
D. PROBATION CONDITIONS
Defendant contends that three of his probation conditions are unconstitutional. The People concede that one of the conditions must be modified. We strike one condition, and modify the other two conditions.
Trial courts have “‘broad discretion to impose conditions to foster rehabilitation and to protect public safety.’ [Citation.]” (People v. Leon (2010) 181 Cal.App.4th 943, 949 (Leon).) “The court’s discretion, however, is not unlimited.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355.) “[P]robation conditions may be challenged on the grounds of unconstitutional vagueness and overbreadth. [Citation.]” (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) We apply the abuse of discretion standard of review when analyzing a trial court’s decision to impose a particular term of probation. (Leon, at p. 949.)
1. RESIDENCE APPROVAL
Condition No. 6 of defendant’s probation reads: “Reside at a residence approved by the Probation Officer and not move without his/her prior approval.” Defendant contends that the foregoing condition is unconstitutionally overbroad. Defendant asserts that probation condition No. 6 impinges on his constitutional rights of travel and association. Defendant asserts that the condition is overbroad because it does not impose any limits on the probation officer’s discretion. Defendant requests that this court modify the probation condition so that it limits the authority of the probation officer, or strike the condition. We agree with defendant and strike the condition.
“‘“‘Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn. To the extent it is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.’” [Citation.]’ [Citation.]” (People v. Freitas, supra, 179 Cal.App.4th at p. 751.)
In People v. Bauer (1989) 211 Cal.App.3d 937, the reviewing court found that a similar probation condition impinged on the defendant’s constitutional rights of travel and association. The reviewing court wrote, “The condition gives the probation officer the discretionary power, for example, to forbid [the] appellant from living with or near his parents—that is, the power to banish him. It has frequently been held that a sentencing court does not have this power. [Citations.]” (Id. at pp. 944-945)
We find no reason for defendant needing to secure a probation officer’s approval of his residence. We acknowledge that defendant operated a chop shop from his residences; however, if the purpose of the condition is to prevent defendant from living in a location where he could store a car, then defendant is likely to be banished from the county, because most residences include parking for vehicles. The more reasonable probation requirement, which will serve the state’s interest in defendant’s reformation and rehabilitation, is the search condition—allowing officers to search defendant’s residence for stolen vehicles. Consequently, we conclude that the trial court abused its discretion; the probation condition is overbroad, because it is not reasonably related to the state’s interest in defendant’s reformation and rehabilitation and is an unconstitutional restriction on defendant’s rights of travel and association. Therefore, we will order that the probation condition be stricken.
The People contend that the probation condition is constitutional because there is no indication that a probation officer could banish defendant. To the extent the People are correct, we still fail to see the rehabilitative value of requiring defendant to live in approved housing. Accordingly, we are not persuaded by the People’s argument.
The People assert that the probation condition is designed to ensure that defendant “does not select a future residence that is well suited to maintaining similar criminal activities.” The record reflects that defendant stored cars in the backyard of the San Jacinto house and the garage of the Hemet house. We are not persuaded that defendant’s rehabilitative needs would be served by banning him from residing in a house with a backyard and/or garage. Again, it is the search provision which will serve defendant’s rehabilitation and reformation, not approval of his housing.
2. WEAPONS RESTRICTIONS
Condition No. 9 of defendant’s probation reads, “Not own, possess, have under your control or immediate access to any firearm, deadly weapon or weapon related paraphernalia or incendiary device.” Defendant contends that the foregoing condition is unconstitutionally vague and overbroad because it does not include a knowledge requirement. The People support defendant’s contention. We agree.
“Given ‘the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, ’ the knowledge requirement in probation conditions ‘should not be left to implication.’ [Citation.]” (Leon, supra, 181 Cal.App.4th at p. 950.)
Probation condition No. 9 is constitutionally defective because it lacks an explicit requirement that defendant have knowledge of the fact that he has immediate access to a weapon. Absent such an explicit qualification, defendant is vulnerable to a criminal punishment for having access to weapons of which he his unaware. Accordingly, we will order that probation condition No. 9 be modified to read as follows: “Not own, possess, have under your control, or knowingly have immediate access to any firearm, deadly weapon or weapon related paraphernalia or incendiary device.”
3. VICTIM CONTACT
Condition No. 12 of defendant’s probation prohibits defendant from having direct or indirect contact with the victims in this matter—the condition lists the victim’s names. Defendant contends that the foregoing condition is unconstitutionally vague and overbroad because it does not include a knowledge requirement. Defendant is concerned that he could innocently be at the same store as one of the victims, and then be found in violation of his probation. We agree.
“[T]he knowledge requirement in probation conditions ‘should not be left to implication.’ [Citation.]” (Leon, supra, 181 Cal.App.4th at p. 950.)
Accordingly, we modify probation condition No. 12 to read: “Do not knowingly have any direct or indirect contact with D. Tackett, B. Williams, J. Paz, H. Dunn, and P. Eacret.”
It is unclear who “P. Eacret” refers to, and how the person is connected to this case. We note that the People are also unable to determine the identity of “P. Eacret.”
The People contend that defendant sat through his trial, in which the victims testified, and therefore, defendant has received due process notice of who the victims are, and defendant knows who he must avoid. In other words, the People contend that probation condition No. 12 does not need to be modified. We do not find the People’s position persuasive because, as set forth ante, “the knowledge requirement in probation conditions ‘should not be left to implication.’ [Citation.]” (Leon, supra, 181 Cal.App.4th at p. 950.) Absent the express knowledge requirement, defendant is vulnerable to being punished for unknowingly violating probation condition No. 12.
E. CREDITS
Defendant contends that he is entitled to a greater amount of presentence custody credits because the governing statute has been amended. (Pen. Code, § 4019.) We disagree.
Penal Code section 4019 provides the formula for calculating good behavior credits. (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) The credit formula was amended by the Legislature in 2009, and the amendments became effective on January 25, 2010. (Sen. Bill No. 18 (2009-2010 3d Ex. Sess.) § 50.) “A new or amended statute applies prospectively only, unless the Legislature clearly expresses an intent that it operate retroactively.” (People v. Ledesma (2006) 39 Cal.4th 641, 664.) Despite this general principle, however, the California Supreme Court has held that, “where the amendatory statute mitigates punishment and there is no saving clause, ... the amendment will operate retroactively so that the lighter punishment is imposed.” (In re Estrada (1965) 63 Cal.2d 740, 748.)
The present issue is pending before the California Supreme Court, and has resulted in a split of authority among the districts. Consistent with cases already decided by this court, we again conclude that the amendment to section 4019 is intended to be prospective only. First, the amendment does not inevitably result in a reduction of a prisoner’s punishment. The statute affects credits only, not the actual sentence. Second, another portion of the statute, affecting a different Penal Code section (§ 2933.3, subd. (d)), was expressly made retroactive, but the Legislature failed to make a similar provision as to the amendment to section 4019. (Legis. Counsel’s Dig., Sen. Bill No. 18 (2009-2010 3rd Ex. Sess.) Ch. 28, § 41.) Third, the statute’s purpose is to motivate good conduct among prisoners, to maintain discipline and minimize threats to prison personnel. (People v. Silva (2003) 114 Cal.App.4th 122, 127-128.) “Reason dictates that it is impossible to influence behavior after it has occurred.” (In re Stinnette (1979) 94 Cal.App.3d 800, 806.) In such circumstances, where the purpose is to influence behavior and not necessarily to reduce punishment, the prospective-only operation of the statute is reasonably related to a legitimate public purpose, and does not violate equal protection if applied to some prisoners (to whom it applies currently) but not others (whose past conduct is already completed).
Section 4019 amendment held retroactive: People v. Brown (2010) 182 Cal.App.4th 1354, 1364-1365 (Third Dist.) review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096, 1099, 1108 (First Dist., Div. Two) review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1057 (Second Dist., Div. One) review granted June 23, 2010, S182813; People v. Norton (2010) 184 Cal.App.4th 408, 417 (First Dist., Div. Three) review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, 483-484 (First Dist., Div. Five) review granted July 21, 2010, S183552; People v. Bacon (2010) 186 Cal.App.4th 333, 335-337 (Second Dist., Div. Eight) petition for review pending S184782; People v. Keating (2010) 185 Cal.App.4th 364, 382-391 (Second Dist., Div. Seven) review granted Sept. 22, 2010, S184354.
Also, the amending bill was a fiscal emergency enactment. (Legis. Counsel’s Dig., Sen. Bill No. 18 (2009-2010 3rd Ex. Sess.) Ch. 28, § 62.)Although awarding more conduct credits has the effect of saving money by releasing prisoners earlier, it is nevertheless true that the Legislature did not answer fiscal concerns by directly enacting early releases. Rather, it simply provided that some prisoners would have the opportunity to increase the rate at which they accrued conduct credits. The Legislature’s concerns in the enacting bill were comprehensive, and did not manifest an intent to retroactively to reduce prison sentences.
The presumption of prospective application has not been rebutted in this case. We conclude that the amended provisions of section 4019 apply prospectively only. Defendant was sentenced on September 4, 2009—more than four months before the statutory amendments became effective. Consequently, defendant is not entitled to have his credits calculated via the amended formula. In sum, the trial court did not err.
DISPOSITION
Defendant’s probation terms are modified as followed:
Probation condition No. 6 is stricken.
Probation condition No. 9 is modified to read: “Not own, possess, have under your control, or knowingly have immediate access to any firearm, deadly weapon or weapon related paraphernalia or incendiary device.”
Probation condition No. 12 is modified to read: “Do not knowingly have any direct or indirect contact with D. Tackett, B. Williams, J. Paz, H. Dunn, and P. Eacret.”
In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P. J., HOLLENHORST, J.
Section 4019 amendment held prospective only: People v. Rodriguez (2010) 183 Cal.App.4th 1, 5 (Fifth Dist.) review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422, 436 (Fourth Dist., Div. Two) review granted July 21, 2010, S184314; People v. Hopkins (2010) 184 Cal.App.4th 615, 626–627 (Sixth Dist.) review granted July 28, 2010, S183724; People v. Eusebio (2010) 185 Cal.App.4th 990 (Second Dist., Div. Four) review granted Sept. 22, 2010, S184957.